LIANE HANSEN, host:
A column in The New York Times this week caught our attention. Adam Cohen wrote about number of recent conferences on the Rehnquist Court and its legacy. They have a particular prohibition built in. Participants in the conferences are told they're not to discuss what Mr. Cohen called the most historic case of William Rehnquist's time as Chief Justice, Bush v. Gore, the case that decided the 2000 presidential election. The reason, they're told, is that the Court specifically declared that the case was not to be used as precedent.
WEEKEND EDITION's legal adviser and University of Colorado law Professor Mimi Wesson joins us from Boulder, Colorado.
Good morning, Mimi.
Professor MIMI WESSON (University of Colorado School of Law): Morning, Liane.
HANSEN: This is an interesting concept, the idea that the case can't be used as precedent. Isn't that one of the foundations of our legal system and it even has a Latin term?
Prof. WESSON: Stari decisus, that's right. And almost everyone who's thought about what we call the rule of law, which is something we're really proud of in this country, agrees that a court's obligation to follow its own precedents - or at least to acknowledge them and explain why it's chosen not to follow them - is one of the most important features of the rule of law. Now, that's not to say that it's never justified for a court to overrule its own precedents.
In fact, when the Supreme Court in Brown vs. Board of Education in 1954 overturned one of its own precedents, a 56-year-old case, that was generally regarded as one of the Court's best moments. But there the Court acknowledged what it was doing. It didn't pretend that the earlier precedent didn't exist. And it didn't tell us that its current decision shouldn't be looked to as an authority.
More recently, the Court's overturned a number of its own precedents, too, especially in the area of capital punishment. But it generally acknowledges that it's making a change of course and attempts to justify it. So it's that contrary aspect of Bush vs. Gore, the Court's announcement that it was not going to treat its own work as precedential, that shocked and dismayed a lot of Court observers.
HANSEN: I understand lower courts have been doing something to avoid precedent for some time now.
Prof. WESSON: Well, not exactly the same thing, but something similar. For many years the intermediate appellate courts in the federal system, the courts of appeal, or most of them, have resorted to what they call unpublished opinions to decide large numbers of the cases before them. Now, these decisions are often very brief and uninformative. And like Bush vs. Gore, they've carried a sort of restrictive endorsement that they're not to be treated as precedent.
In recent years, they're not actually literally unpublished because they are public documents and someone will make them electronically available somewhere on the Web. But in some of the courts of appeal, lawyers were actually forbidden to mention these decisions in their briefs and arguments before the courts.
Many judges and some lawyers defend this practice by saying that the appellate judges have so much work to do that they can't possibly decide all the cases before them carefully enough to justify the use of every decision as precedent. But most federal judges are also on record as opposing any increase in the size of the federal appellate judiciary, which is a measure that would alleviate the pressure of their work considerably.
HANSEN: What have the higher courts had to say about this use of unpublished opinions?
Prof. WESSON: This is pretty ironic, actually. This last April, the Supreme Court endorsed an amendment to the rules that govern the federal courts. This amendment would end the practice of using unpublished opinions to decide cases, while forbidding their use as precedent. Unless Congress intervenes to change this rule, it will become effective next New Year's Day.
HANSEN: Okay, so now take us back to Bush v. Gore. Even though the Court says it shouldn't be used as precedent, there are some liberal groups that are trying to do just that. Is there legal principle or reasoning in Bush v. Gore that they're trying to use?
Prof. WESSON: There were two lawsuits. And in them liberal groups challenged voting practices that would, for example, place very convenient and accurate voting devices in some precincts and tolerate unreliable devices or inadequate facilities in others. The plaintiffs argued that this sort of differential treatment of voters, because of the happenstance of their location, violates the equal protection according to Bush vs. Gore, which is a pretty plausible argument, in my opinion.
HANSEN: Any success?
Prof. WESSON: Well, the California case was ultimately unsuccessful. The Ohio case was recently decided in favor of the plaintiffs by a panel of the Sixth Circuit Court of Appeals. But now the case has been sent down to be reheard by the entire court of appeals, which is a development that often presages a reversal. Those defending the state's arrangements against these challenges have argued, of course, that Bush vs. Gore shouldn't be invoked as a precedent because the Supreme Court did not intend it be used this one.
HANSEN: Okay, so wrap it up for us. What's the importance of precedent in the way our system works? And what are the dangers of ignoring it?
Prof. WESSON: Precedents are a key element of the complex web of history and culture and that constrains courts and maintains their legitimacy in the eyes of those who have to live with those decisions in all of this. And for the most part, we do live with the court's decisions willingly. But if that perception of legitimacy, and hence that willingness should be lost, not just our legal culture but our entire political system are in grave trouble.
Prof. WESSON: For many of us, the most disturbing aspect of Bush vs. Gore was the apparent willingness of five members of that Court to abandon a commitment to respect for precedent. But times have changed. The Court has changed. And we can hope that that aspect of the decision - well, we can hope that the Court doesn't regard it as a precedent.
HANSEN: Legal advisor Mimi Wesson teaches at the University of Colorado School of Law. She's also a mystery writer. Her most recent novel is Chilling Effect, and she joined us from the studios of KGNU in Boulder, Colorado.
Mimi, thanks very much.
Prof. WESSON: Thanks for having me, Liane.
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